[1989] OLRB Rep. December 1224
2023-89-R Labourers' International Union of North America, Local 183, Applicant v. Macdero Construction Limited, Respondent
BEFORE: N. B. Satterfield, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.
DECISION OF THE BOARD; December 7, 1989
The name of the respondent is amended to read: "Macdero Construction Limited".
The applicant has brought this application under the construction industry provisions of
the Labour Relations Act. The reply endorses the description of the bargaining unit proposed by the applicant. Stated in general terms that unit is all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and in all other sectors of the construction industry in the Board's geographic area #8.
- Subsection 102(14) of the Act gives the Board discretion to determine applications for certification to which sections 117 to 119 apply; that is, applications which have been brought properly under the construction industry part of the Act. The reply in this application was completed so as to request that the Board hold a hearing into it. The reasons given in support of the respondent's request are:
A. For approximately the last five years our company has been involved in the maintenance of parking garages. The services we offer to our clients on an ongoing basis, are designed to prevent further deterioration and maintain the integrity of each structure. We prevent further harmful effects of untreated concrete by the application of waterproof membranes.
B. Misrepresentation was made to the employees by Mr. Leo D'Agostini, the Business Representative of the Applicant. Namely, Mr. D'Agostini, in order to insure that employees signed authorization cards, informed them that if they joined the union they would be paid $18.00 - $19.00 per hour right away. The company superintendent (Mr. Bruno Porciello) was informed of this by one of our employees. (The name shall be withheld for confidentiality reasons but he will be produced as a witness at the hearing.) As a result of this action on the part of the union it is the employers submission that the true desires of the employees to be represented by a union are incorrect. Additionally, at the very least we would submit that the unions membership evidence is sufficiently tainted that it cannot be given any weight. We request that the membership evidence be disregarded and the application be dismissed.
Were the request for a hearing based solely on the misrepresentations alleged in paragraph B, no useful purpose would be served, in the Board's view, by holding a hearing into the application. This is because absent particularized allegations that the applicant used coercion or threats to obtain its membership evidence, employees' economic considerations are irrelevant to the voluntariness of the membership evidence and the Board will not inquire into those considerations. See Dominion Paving Limited, [1986] OLRB Rep. June 705.
The reason stated in paragraph "A", however, appears to be a claim that the respondent is not engaged in the construction industry. In order for the Board to certify a trade union under the construction industry provisions of the Act, the Board must be able to find that it is a trade union which pertains to the construction industry within the meaning of clause (f) of section 117 of the Act, that the employees for whom it seeks to become exclusive bargaining agent are employees as defined in clause (b) of that section and the respondent is a person who operates a business in the construction industry, in other words, an employer within the meaning of clause (c) of section 117. The construction industry is defined in clause (f) of subsection 1(1) of the Act. The statement in paragraph "A" raises an issue of whether the respondent is an employer within the meaning of clause (c) of section 117. That issue goes directly to the Board's jurisdiction to certify the applicant. Clearly, a hearing into that issue would serve a useful purpose.
Therefore, the Registrar is directed to list this application for hearing for the purpose of receiving the evidence and representations of the parties respecting all matters arising out of and incidental to the application, including in particular whether the respondent operates a business in the construction industry.